The New York Advisory Committee on Judicial Ethics has issued an opinion clarifying the extent to which a Family Court judge can delegate certain responsibilities to their court attorneys.
The opinion, designated 25-86, addresses whether it is ethically permissible for judges to delegate authority in custody, visitation, guardianship, and family offense cases, specifically concerning the return of process and the determination of joinder of issue.
The inquiry originated from a Family Court judge with supervisory authority seeking guidance on delegating tasks such as joining issue with or without the respondent’s consent, allocuting a petitioner on the withdrawal of a family offense petition, dismissing a petition due to the petitioner’s failure to appear, and issuing orders for alternative service.
The Committee’s opinion emphasizes that while judges can delegate ministerial functions to staff, they must not delegate adjudicative responsibilities unless explicitly authorized by law. Citing previous opinions, the Committee distinguishes between tasks that are purely mechanical or routine and those that require the exercise of judgment and the application of law to specific facts.
Regarding the joinder of issue, the Committee determined that this act is a judicial function because it marks the formal entry into the legal process and signifies that the case is ready for adjudication. The judge must ensure the validity of the respondent’s consent, if given, and determine whether proper service was effected if the respondent fails to appear. Overruling a respondent’s objection to joining the issue also necessitates judicial consideration.
Concerning the withdrawal of a family offense petition, the Committee stated that allocution, the formal questioning of the petitioner, is a judicial responsibility. The judge must assess the voluntariness of the withdrawal, ensure the petitioner understands the implications, and consider factors such as safety, potential harm, and the presence of coercion.
On the matter of dismissing a petition due to the petitioner’s failure to appear, the Committee found that this decision requires the judge to consider the reasons for non-appearance, court rules, and the overall circumstances of the case. This process involves judgment and discretion, classifying it as a judicial function.
Finally, regarding the issuance of an order for alternative service, the Committee concluded that this decision is also a judicial function. The judge must exercise discretion and direct a means of service based on the specific facts and circumstances of each case.
The Committee concluded that delegating these responsibilities to court attorneys would be ethically impermissible, as it could appear as if the court attorney is usurping the judge’s authority. The opinion references several rules of judicial conduct, including the requirement to avoid impropriety, promote public confidence in the judiciary, respect the law, and diligently discharge administrative duties.
